Ethics Waivers

U.S. Department of Justice

Federal Bureau of Investigation

Washington, D.C. 20535

DR. IVAN GREENBERG

May 24, 2011

Subject: ETHICS WAIVERS
FOlPANo. 1152257- 000

Dear Dr. Greenberg:

The enclosed documents were reviewed under the Freedom of Information/Privacy Acts (FOIPA), Title 5,
United States Code, Section 552/552a. Deletions have been made to protect information which is exempt from disclosure,
with the appropriate exemptions noted on the page next to the excision. In addition, a deleted page information sheet was
inserted in the file to indicate where pages were withheld entirely. The exemptions used to withhold information are marked
below and explained on the enclosed Form OPCA-16a:

Section 552 Section 552a

□(b)(1)

□(b)(7)(A)

□(d)(5)

□(b)(2)

□(b)(7)(B)

□0)(2)

□(b)(3)

□(b)(7)(C)

□(k)(1)

□(b)(7)(D)

□(k)(2)

□(b)(7)(E)

□(k)(3)

□(b)(7)(F)

□(k)(4)

□(b)(4)

□(b)(8)

□(k)(5)

0(b)(5)

□(b)(9)

□(k)(6)

0(b)(6)

□(k)(7)

70 page(s) were reviewed and 49 page(s) are being released.

□ Document(s) were located which originated with, or contained information concerning other
Government agency(ies) [OGA], This information has been:

□ referred to the OGA for review and direct response to you.

□ referred to the OGA for consultation. The FBI will correspond with you regarding this
information when the consultation is finished.

s You have the right to appeal any denials in this release. Appeals should be directed in writing to the
Director, Office of Information Policy, U.S. Department of Justice, 1425 New York Ave., NW,

Suite 11050, Washington, D.C. 20530-0001. Your appeal must be received by OIP within sixty (60) days
from the date of this letter in order to be considered timely. The envelope and the letter should be clearly
marked “Freedom of Information Appeal." Please cite the FOIPA Number assigned to your
request so that it may be easily identified.

□ The enclosed material is from the main investigative file(s) in which the subject(s) of your request was
the focus of the investigation. Our search located additional references, in files relating to other
individuals, or matters, which may or may not be about your subject(s). Our experience has shown,
when ident, references usually contain information similar to the information processed in the main file(s).
Because of our significant backlog, we have given priority to processing only the main investigative file(s).

If you want the references, you must submit a separate request for them in writing, and they will be
reviewed at a later date, as time and resources permit.

ta See additional information which follows.

Sincerely yours,

David M. Hardy
Section Chief
Record/Information
Dissemination Section
Records Management Division

Enclosure(s)

In response to your Freedom of Information Act (FOIA) request, enclosed is a processed copy of
responsive documents.

EXPLANATION OF EXEMPTIONS

SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552

(b)(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign

policy and (B) are in fact properly classified to such Executive order;

(b)(2) related solely to the internal personnel rules and practices of an agency;

(b)(3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute(A) requires that the
matters be withheld from the public in such a manner as to leave no discretion on issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld;

(b)(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(b)(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation

with the agency;

(b)(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(b)(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement

records or information ( A ) could be reasonably be expected to interfere with enforcement proceedings, ( B ) would deprive a person
of a right to a fair trial or an impartial adjudication, ( C ) could be reasonably expected to constitute an unwarranted invasion of personal
privacy, ( D ) could reasonably be expected to disclose the identity of confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a confidential basis, and, in the case of record or information compiled
by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source, ( E ) would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such
disclosure could reasonably be expected to risk circumvention of the law, or ( F ) could reasonably be expected to endanger the life or
physical safety of any individual;

(b)(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for
the regulation or supervision of financial institutions; or

(b)(9) geological and geophysical information and data, including maps, concerning wells.

SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a

(d)(5) information compiled in reasonable anticipation of a civil action proceeding;

(j) (2) material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce

crime or apprehend criminals;

(k) ( 1 ) information which is currently and properly classified pursuant to an Executive order in the interest of the national defense or foreign

policy, for example, information involving intelligence sources or methods;

(k)(2) investigatory material compiled for law enforcement purposes, other than criminal, which did not result in loss of a right, benefit or

privilege under Federal programs, or which would identify a source who furnished information pursuant to a promise that his/her identity
would be held in confidence;

(k)(3) material maintained in connection with providing protective services to the President of the United States or any other individual pursuant
to the authority of Title 18, United States Code, Section 3056;

(k)(4) required by statute to be maintained and used solely as statistical records;

(k)(5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian
employment or for access to classified information, the disclosure of which would reveal the identity of the person who furnished
information pursuant to a promise that his/her identity would be held in confidence;

(k)(6) testing or examination material used to determine individual qualifications for appointment or promotion in Federal Government service the
release of which would compromise the testing or examination process;

(k)(7) material used to determine potential for promotion in the armed services, the disclosure of which would reveal the identity of the person
who furnished the material pursuant to a promise that his/her identity would be held in confidence.

FBI/DOJ

FEDERAL BUREAU OF INVESTIGATION
FOIPA

DELETED PAGE INFORMATION SHEET
Serial Description ~ Unrecorded Serial

Total Deleted Page(s) ~ 2
Page 1 ~ Duplicate
Page 2 ~ Duplicate

XXXXXXXXXXXXXXXXXXXXXXXX
X Deleted Page(s) X
X No Duip.lication Fee X

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FEDERAL BUREAU OF INVESTIGATION
FOIPA

DELETED PAGE INFORMATION SHEET
Serial Description ~ Unrecorded Serial

Total Deleted Page(s) ~ 1
Page 2 ~ Duplicate

XXXXXXXXXXXXXXXXXXXXXXXX
X Deleted Page(s) X
X No Duplication Fee X
X for tnis Page X
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FEDERAL BUREAU OF INVESTIGATION
FOIPA

DELETED PAGE INFORMATION SHEET
Serial Description ~ Unrecorded Serial

Total Deleted Page(s) ~ 18
Page 8 ~ b5, b6
Page 9 ~ b5, b6
Page 10 ~ b5, b6
Page 1 1 ~ b5, b6
Page 18 ~ Referral/Direct
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U.S. Department of Justice
Federal Bureau of Investigation

Office of the General .Counsel

Waihingion. D.C 20S35

December 21, 2001

MEMORANDUM FOR THE DEPUTY ATTORNEY GENERAL

THROUGH: ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION

FROM: La'rry R. Parkinson P , — ■ *

General Counsel, FBl/ v *^\

SUBJECT: WAIVER UNDER 18 U.S.C.’ §. 208(B) (1) FOR ROBERT S: MUELLER, III

PURPOSE: To obtain a waiver from the disqualification of the

financial conflict of interests statute so that Robert S.

Mueller, III, will be able to participate as .Director, Federal
Bureau of Investigation (FBI), in matters arising in connection
with the CALEA program that involve the interests identified
below.

TIMETABLE: Priority.

DISCUSSION: Pursuant to the 'provision of 18 U.S.C.' § 208 (b), I

hereby request a waiver from the prohibition of 18 U.S.C.

§ 208(a) for Robert S. Mueller, III. Section 208(a) prohibits,
in pertinent part, an executive branch employee from
participating personally and substantially in particular matters
in which to his knowledge, he, his spouse, or other organizations
with whom he has a specified relationship, has a financial
interest. However, section 208(b)(1) permits a waiver of the
prohibition where the employee's financial interest in a matter
is not so substantial as to be deemed likely to affect the'
integrity of the services which the government may expect from
him.

Under the Department of Justice Order on procedure for
complying with ethics requirements, you have been delegated the
authority for making ethics determinations for Mr. Mueller,
including waiving the section 208(a) prohibition. This waiver
will be your determination that certain financial interests are
not so substantial as to be likely to affect the' integrity of his
services to the government in the matters addressed by the
waiver.

I i £ !W Sc did (002

, 33!!Sr:f f{l

iVisvisJj.iFs 3 a r i r> d 2 c r

Memorandum for the Deputy Attorney General

Re: Waiver under 18 U.S.C. § 208(b)(1) for Robert S. Mueller, III

This waiver is .in addition to the waiver you previously
granted that extended to all of Director Mueller's 'financial
interests that do not exceed $25,000. This waiver specifically

For the purposes of this waiver request, the
Governmental duties that Director 'Mueller has that would impact
these financial interests are those involved in heading the
component charged with implementing the CALEA program. These
effects on these firms prohibit him from performing his
government duties in relation to each CALEA matter that involves
the interests of firms in which he holds an interest, |

CALEA was enacted to preserve law -enforcement’s ability to
conduct lawfully-authorized electronic surveillance in order 'to
ensure national security and public safety. The initiative
responded to changing technologies that were precluding •
interception with -existing methods and equipment. ■ CALEA charged
the Attorney General with a leadership role in implementing the
act, including setting industry-wide standards for intercepting
communications and entering into cooperative agreements with
telecommunications carriers to allow them to recover the costs of
installing the necessary equipment. The Attorney General's
authority has been assigned to the Director, FBI. To date, CALEA
program focus has been on setting standards, acquiring right-to-.
use licenses from manufactures, entering into cooperative
agreements with service providers, and, most recently, deploying
CALEA-compliant solutions. The issues are. both broad brush,
e.cr. , setting standards, and company specific, e ■ g . . purchasing
licenses and deploying solutions. Most, if not all, of the

2

Memorandum for the Deputy Attorney General

Re: Waiver under 18 U.S.C. § 208(b)-(l) for Robert S. Mueller, III

interests that may be affected by CALEA-related actions are in
the telecommunic ations sector, especially, the phone companies.

| are two such companies that are significantly
1 11WU1VUU, X30LJ1 In relation to industry-wide standards and
company-specific actions. . The issues that are most likely to be
encountered in the near term are those associated with deploying
solutions and setting standards in conjunction' with the Federal
Communications Commission. Since negotiations are just
beginning, there is no reliable estimate of the dollar value of
deployment agreements to SBC or Verizon. Our current estimate of
the value of a deployment agreement to a company like these is
approximately $20 million, though ultimately, the figure may.be.
significantly higher. SBC’s operating revenues for CY 2000 were
$51.5 billion and Verizon’s totaled $43.3 billion.

RECOMMENDATIONS :

ni Mnp 1 Ipi-’.o

-

1

| I find tnat tn^r£ is littlB HT^iinood that
these interests will affect the integrity of Director Mueller’s
official actions. Therefore, I recommend that you waive the
section 208(a) prohibition as to these interests, but, in an
ahnnrian rp n-F caution. n nlv to the extent the matter does not . .
involve ) | as a party, i.e. . directly affect either,

e.g. . deployment agreements with either company or. litigation in
which either company is a named party.

APPROVE :

DISAPPROVE:. • DATE:

•OTHER:

1 -Ms. Mary Braden
Director

Departmental Ethics Office
Room 6642

U.S. Department of Justice
Washington, D.C. 20531

3

Department of Justice
EXECUTIVE SECRETARIAT
CONTROL SHEET

1. FOLDER No: 1287096

2. TRACKING ID No: X01-115937

3. RESERVED

4. DATE OF DOCUMENT: 12/21/2001

5. DATE RECEIVED: .01/07/2002

6. DUE date: No Due Date

7. from: Larry R. Parkinson

General counsel

Federal Bureau of Investigation
Washington, DC 20535-0001

8. TO: DAG

9. CATEGORY: SENSITIVE

10 'Memo E (rec'd from ODAG) requesti ng . the dag;s approval, of a
waiver from the disqualification of the financial conflict of
interests statute so FBI Director Mueller will be able to
participate as FBI Director in matters arising in connection
with the CALEA program. ' IMD/Braden recommended approval by
note dated 12/31/2001. Ckgt)

li . ACTION/IN FORMATION :

Referred To: Date Assigned.

ES FILES

01/07/2002

Action:

For closing, filing, and
dispatching.

FBI forwarded pkg directly to
ODAG. JMD concurred by note
dated 12/31/01 and DAG approved
on 1/4/02. es returned original
pkg to FBI.

12. RESERVED FOR EXECUTIVE SECRETARIAT USE
waiver - CALEA

13. EXECUTIVE SECRETARIAT CONTACT:

LIMITED OFFICIAL USE

March 23, 2001

Federal Bureau of Investigation j.’“ ; ‘

Washington, DC . 2p.535 ; i*.'- V'"''

SOURCE SELECTION- SENSITIVE INFORMATl'ON -- LIMITED OFFICI Ai>vUSE. i 5.
I ■ ■ 1 ■* r.y.o „i- ;> ’ ' .;»y. i' >»

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This Tetter 'responds' to 3 '‘Jour' request 1, for “'a waiver plirsil'ant
to 18 U.S.C.- § 208(b) (1) to allow you to participate, as a member
of the Soured Selection Advisory- Council ("SSAC" ^considering
proposals submitted in connection with the' FBI's technology
upgrade, the Trilogy procurement, Solicitation # GSC-TFMG-01-
M026. This procurement affects your financial interests, which
arise from* your holding -of stock in Microsoft Corporation
("Microsoft") .

You have.*

approximately H

stock makes up]
investments.

lurrentlv hold

I your

For the purposes of this waiver request, the Governmental
duties you have that conflict with your financial interests 'are
those as a member of the SSAC cansidering the Trilogy proposals.
In that role - , you are required to analyze and recommend
appropriate action on the proposals, including recommending to
the source selection authority which proposal should be accepted.
You are not the selection authority, however. In this case the
selection official is an employee of Federal Systems Integration
and Management Center.

Among the four companies competing for the prime contract,
each has proposed ‘subcontractors and various vendors as sources
of equipment and supplies. Two of those competing for the prime
contract propose using off-the-shelf products produced by
Microsoft. The total value for both offers' is estimated to be
$2 5 thousand. In carrying out your duties as a member of the
SSAC, your interests in Microsoft could be affected by the

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selection or npj^se^e.&tlon .-of a proposal’ that i n c-i ub ed.’.us. ip g. I
Microsoft products..

bb

This effect oi> ‘Mict-osof-t gives yb^'-a disquarlifyin.g'.fihancial
interest in the matter. Under 18 U.S.C. §208 (a), Federal
employees iriay not participate personally and substantially in any
particular, matter that would have a direct and predictable effect
on their financial interests. or those of .certain others, such as .
.their spouses. Thus, you would be disqualified from acting on
the proposals.

Nevertheless, under 18 U.S.C, § 208(b)(1), I may waive the
prohibition of 18 U.S.C. § 208(a) where I determine that the
employee’s financial' interest in the matter "is not so
substantial as to be deemed likely to affect the integrity of the
services which the Government may expect" from the employee. I
have been delegated authority by the Director, tBI, to make this
determination.

Accordingly, in light of the minor role the services tliat
are proposed to be purchased from .Microsoft plays in this
procurement, the small impact the purchase - or non-purchase of
services from Microsoft would likely have on Microsoft's economic
health', and the small percentage your Microsoft, holdings
represent of your investments, I hereby grant a waiver of 18
U.S.C. § 208(a) with regard to your participation as a member of
SSAC that would affect your financial interests in Microsoft.

That financial interest is not so substantial' as to be deemed
likely to affect the integrity of your services in these matters.

This waiver applies only to your participation in the SSAC
considering proposals submitted in response to Solicitation GSC-
TFMG-01-M026 and only as to your current holdings of Microsoft
stock. The statute, 18 U.S.C. § 208(a)) continues to disqualify
you from participating personally and substantially in any other
particular matter that involves Microsoft' s • interests . In
addi.tion, any significant change in your interest in Microsoft,
beyond normal market fluctuations- or dividend reinvestments would
heed to be separately evaluated.

2

I have .consulted ' with the Office of : Gover\nrnent.s:E:thics- qn
this waiver and will"- provide^ that office a .copy .of it . ,

. ....... w; ■■ r-\:-

' 1 “ sincerely yours.

P.M. Kelley

Deputy Designated Agency
Ethics Official

April 30, 2008

To: Ms. Janice Rogers

Director, Departmental Ethics Office

From: Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

Re: ' 18 U.S.C. § 208 (b) (1) WAIVERS AND OPINIONS UNDER

1 8 U.S.C. §§ 202-209, AND TRAVEL UNDER 31 U.S.C. § 1353

This responds to your e-mail dated March 31, 2008.

f

There were no waivers granted by the FBI under 1 8 U.S.C. § 208 (b) (1) from October 1,
2007, through March 3 1,2008. Enclosed are two copies of: (1) the eleven opinions issued
under 18 U.S.C. §§ 202-209 by the FBI from October 1, 2007, through March 31, 2008; and
(2) the SF-326 Semi-Annual Report of Payments Accepted from a Non-Federal Source for the
period October 1, 2007, through March 31, 2008.

Enclosures (12)

1 - OIC Library (Ethics/Travel/NortFederal Sources)

1 - 3 19V-HQ-A1 487693
RLP:rlp (2)

October 30, 2008

To: Ms. Janice Rogers

Director, Departmental Ethics Office

From: Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

Re: 18 U.S.C. § 208 (b) (1) WAIVERS AND OPINIONS UNDER

18 U.S.C. §§ 202-209, AND TRAVEL UNDER 31 U.S.C. § 1353

This responds to youT e-mail dated September 30, 2008.

There were no waivers granted by the FBI under 18 U.S.C. § 208 (b)(1) from April 1,
2008', through September 30, 2008. Enclosed are two copies of: (1) the fourteen opinions
issued under 1 8 U.S.C §§ 202-209 by the FBI Rom April 1, 2008, through September 30, 2008;
and(2) the SF-326 Semi-Annual Report of Payments Accepted from a Non-Federal Source for
the period April 1, 2008, through September 30, 2008. . :

Enclosures (12)

1 - OIC Library (Ethics/Travel/NonFederal Sources)
1 - 3 19V-HQ-A1 487693
RLP:rlp (2)

U.S> Department of Justice

Federal Bureau of Investigation

Washington, D.C . 20535

April 28, 2006

Ethics Office

' <«*»>

^ Responds to your memorandum dated April 3,2006.

£ . ' nte dbv the FBI under 1 8 U.S.C. § 208 (b)(1) from October 1,

• ifcSZrRe^rayTnts Acc^ptk ftom aNon-Federd So™ for Ihe ported
Octowr:!., 2005 through March 31,2006.

October 30, 2006

To: • Janice M. Rogers

Director, Departmental Ethics Office

From: Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

Re: 18U.S.C. § 208 (b) (1) WAIVERS AND OPINIONS UNDER

1 8 'U.S.C. §§ 202-209, AND TRAVEL UNDER 31 U.S.C.§ 1353

This responds to your e-mail dated October 2, 2006.

There were no waivers granted by the FBI under 18 U.S.C. § 208 (b) (1) from April 1,
2006, through September 30, 2006, Enclosed are two copies of: (1) the sixteen opinions issued
under 18 U.S.C. §§ 202-209 by the FBI from April 1, 2006, through September 30, 2006; and
(2) the SF-326 Semi-Annual Report of Payments Accepted from a Non-Federal Source for the
period April 1, 2006, through September 30, 2006.

Enclosures (17)

ALU Library (Ethics - Program Matters)
ALU Tickler

1-31 9V-HQ-A 1487693

be

MEMORANDUM

October 26, 2005

To: Ms. Janice Rogers

Director, Departmental Ethics Office I

From: Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO) '

Re: 1 8 U.S.C. § 208 (b) (1 ) WAIVERS AND OPINIONS UNDER

18 U.S.C. §§ 202-209, AND TRAVEL UNDER'31 U.S.C. § 1353 •

As requested- by your memorandum dated September 29, 2005, there were no waivers
granted by the FBI under 18 U,S;C. § 208 (b) (1) from April 1, 2005, through September 30,
2005. - ■

Also, enclosed are fourteen copies of opinions issued under 18 U.S.C. §§ 202-209 by the
FBI from April 1, 2005, through 'September 30, 2005, -

Lastly, the SF-326 Semi-Annual Report of Payments Accepted from a Non-Federal
Source for the period April 1 , 2005, through September 30, 2005, will be for-warded under
separate cover; (We are awaiting its receipt from our Finance Division, which prepares it.)

inclosures' (14) (2 copies each)

i -.Mr, Kellsy

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Off,* PuHtoAIU.-
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1 - ALU Library (Ethics/Travel/NonFederal Sources)
1 - ALU Tickler
I -3I9V-HQ-A1487693

b

April 27, .2005

To: Mr. Keith Simmons

Acting Director, Departmental Ethics Office

From: Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

Re: 18 U.S.C. § 208 (b) (1 ) WAIVERS AND OPINIONS UNDER

18 U.S.C. §§ 202-209, AND TRAVEL UNDER 31 U.S.C. § 1353

As requested by your memorandum dated April 4, 2005, there were no waivers granted by
the FBI under 18 U.S.C. § 208 (b) (1) from October 1, 2004, through March 31, 2005.

Also, enclosed arenine copies of opinions issued-under 18 U.S.C. §§ 202-209 by the FBI
from October 1, 2004, through March 31, 2005.

Lastly, enclosed is the SF-326 Semi-Annual Report of Payments Accepted from a Non-
Federal Source for the period October 1, 2004, through March 31, 2005.

tlO

1 - ALU Library (Eihfcs/Travel/NonFedera] Sources)

1 - ALU Tickler
1 -66F-HQ-12011415-C

Enclosures (7)

October 29, 2004

T o: Mr. Stuart Frisch

Acting Director, Departmental Ethics Office

From: Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

Re: 18 U.S.C. § 208 (b) (1 ) WAIVERS AND OPINIONS UNDER

18 U.S.C. §§ 202-209, AND TRAVEL UNDER 31 U.S.C. § 1353

As requested by your memorandum dated October 6, 2004, there were no waivers
granted by the FBI under 18. U.S.C. §-208 (5) (1) from April 1, 2004, through September 30,
2004. ■

Also, enclosed are nine copies of opinions issued under 1 8 U.S.C. §§ 202-209 by the FBI
from April 1 , 2004, through September 30, 2004..

Lastly, the SF-326 Semi-Annual Report of Payments Accepted from a Non-Federal
Source for the period April 1, 2004, through September 30, 2004 will be forthcoming by separate
enclosure.

. Enclosures (9)

1

- Mr. Kelley

Den. Dir. I

Clncfoi'Satr *

Counsel

Asn.Dlr.: '

Admin, Sesv. Lv

bFTTOJ

Ctnorrorwm ,

Crim- Ipv-

CJIS,

Finance

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Into.

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Nauonul _

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Off. i>fl*nblK
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Training
OlV. ..ITEOa _
Dirccior’i Offtcv

1 - ALU Library (Ethics/Travcl/NonFederal Sources)
1 - ALU Tickler
L -66F-HQ-12011415-C

PP')

MAIL ROOM O

Memorandum

To : Stuart Frisch, Acting Director Date 4/30/2003

DOJ Ethics Office

From : Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

Subject 18 U.S.C. § 208(b)(1) WAIVERS AND OPINION. UNDER

18 U.S.C. §§ 202-209, AND ACCEPTANCE OF TRAVEL UNDER
31 U.S.C. § 1353

As requested by -your memorandum of April 7, 2003,
enclosed are two redacted copies of waivers granted under 18
U.S.C. § 208(b) and opinions issued under 18 U.S.C. §§ 202-209 by
the FBI between October 1, 2002 and March 31, 2003,

1) Letter from DDAEO, dated 1/9/2003; and

2) Letter from DDAEO, dated 1/10/2003, w/encl .

Lastly, enclosed are two copies of the ,SF 326 form.

Per prior discussion with' DOJ it is no longer required that the '
supporting documentation accompany the SF 326.

Enclosures (2)

D«p. Dir. _
ChlefofSioiY.

Otf. of Gen.

Counsd

Asst. Dir.: _

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U.S. Department of Justice

Federal Bureau of Investigation

Office of lhe General .Counsel

Wcuhiiigttin. D.C. 20535

December 15, 2003

T o : Mr. Stuart Frisch

Acting Director, Departmental Ethics Office

From: Patrick W. Kelley Q\A)

Deputy Designated Agency Ethics Official (DDAEO)

Re: 1 8 U.S.C. .§ 208 (b) (1) WAIVERS AND OPINIONS UNDER

18 U.S.C. §§ 202-209, AND TRAVEL UNDER 31 U.S.C. § 1353

As requested by your memorandum dated September 30, 2003, there were no waivers
granted by the FBI under 1 8 U.S.C. § 208 (b) (1) from April 1 , 2003, through September 30,
2003.

Also, enclosed are seven copies of opinions issued under 18 U.S.C- §§ 202-209 by the
FBI from April 1, 2003, through September 30, 2003.

Lastly, enclosed is the SF-326 Semi-Annual Report of Payments Accepted from a Non-
Federal Source for the period April 1, 2003 to September 30, 2003.

Enclosures (2)

Memorandum

To : MS. Mary Braden, Director Date 05/02/2002

DOJ Ethics Office

'From : Mr. Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

Subject: 18 U.S.C. § 208(b)(1) WAIVERS, OPINIONS UNDER

18 U.S.C. §§ 202.-209, AND ACCEPTANCE OF TRAVEL
31 U.S.C. § 1353

As requested by your memorandum of April 19, 2002, the
FBI reports no waivers were granted by the FBI under 18 U.S.C. §
208(b) between October 1, 2001 and March 31, 2002.

Enclosed are redacted copies of opinions issued under 18 U.S.C.
§§ 202-209 by the FBI from October 1, 2001 through March 31,

2002 . •

1) Note from DDAEO, dated 11/8/2001

2) Note from DDAEO, dated 11/8/2001;

3) Memo from Parkinson, dated 11/9/2001;

4) Note from DDAEO, dated 11/9/2001; ■_

5) Note from DDAEO, dated 11/15/2001;

1 - l! Parkinson
1 - P. Kellev
1 -
i -

. 1 - ALU Tickler

1 - ALU Library (Eth/Opinion re:8 U.S.C. 202-209)

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Memorandum to Ms. Mary Braden, Director, DOJ Ethics Office
Re: 18 U.S.C. § 208{b) (1) Waiver and Opinion Under

18 U.S.C. §§ 202-209, and Acceptance of Travel Under
31 U.S.C. § 1353

6) EC dated 12/05/2001, RE:... IMPARTIALITY IN'

PERFORMING OFFICIAL DUTIES; CONFLICT OF INTEREST
DETERMINATION;

.7) EC dated 01/04/2002, RE: ADMINISTRATIVE LAW UNIT
CORRESPONDENCE; VRE OFFER; -

8.) Note from DDAEO, dated 1/23/2002;

9) Memo from DDAEO, .dated 1/28/20021;

10) Memo, dated 1/29/2002; ‘

11) ' Letter from DDAEO, dated 1/31/2001;

12) Letter from DDAEO, dated 2/6/2001;

13) Letter from DDAEO, dated 3/6/2002; and

14) Memo from DDAEO, dated 3/7/2002.

Lastly, enclosed are copies of the SF 326 and the
following memoranda Reflecting instances in which we accepted
travel reimbursement from non-federal sources that totaled more
than $250 per event' for the period between October 1, 2001 and
March 31, 2002.

■ 12 / 2001 ;

Travel Dates :• 8/15-17/2001 ;

ites: 11/8-11/2001:

Dates: 11/14-18/2001;

[■ravel Dates: 11/13-25/2001;

- 2 -

Memorandum to Ms. Mary Braden, Director, DOJ Ethics Office
Re; 18 u.S.C. § 2081b) (1) Waiver and Opinion Under

18 U.S.C. §§ 20'2.-2 0 9, and Acceptance of Travel Under

.C. § 1353

6)1

Travel Dates :

1577-13

7>

1/26-31,

xravei nates :

8) I

1

Travel Dates; 2/23-3/4/2002;

9) 1 I

Travel Dates: 3/2-6/2002;

10 ) [

ii >[

12 ) [

Travel Dates; 3/2-5/2002;

9/2002; and

iwvii Juatasi j; )■

]

Travel Dates: 11/25-27/2001.

b6

Enclosures (26)

- 3 -

Memorandum

\

i

>

To . . : .Ms. Mary Braden, Director Daw 04/30/01

DOJ Ethics Office •

From ; Mr. Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

Subject: 18 U.s.c. § 208 (b)(1) WAIVERS, OPINIONS UNDER ♦

18 U.S.C. §§ 202-209, AND ACCEPTANCE OF TRAVEL UNDER
.31 U.S.C. § 1353

As requested by your memorandum of April 9, 2001,
enclosed are the following redacted copies of waivers granted by
the FBI under 18 U.S.C. § 208 (b) from October' 1, 2000, through
March 30-, 2001:

1) . Letter from DDAEO, dated 3/9/01/

2) Letter from DDAEO, dated 3/23/01.

Also enclosed are redacted copies of opinions issued
under 18 U.S.C. §§ 202-209 by the FBI from October 1, 2000 ,
through March 30, 2001:

1) EC dated 3/23/01, RE: APPEARANCE OF A CONFLICT OF
INTERESTS;

2) EC dated 3/13/01, RE: IMPARTIALITY IN PERFORMING
OFFICIAL DUTIES;

3) EC dated 3/5/01, RE: CONFLICT OF INTEREST;

4) Letter from DDAEO, dated 2/21/01;

5) Memo from DDAEO, dated 2/20/01;

6) EC dated 2/16/01, RE: WG-6, MOTOR VEHICLE OPERATOR
MAIL SERVICES UNIT; •

:[

1 - L. Parkinson
1 ' - P- Kelley

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Memorandum to Ms. Mary Braden, Director, DOJ Ethics Office
Re - : 18 U.S.C. § 208(b) (i) Waiver and Opinion Under

18 U.S.C. §§ 202-209, and Travel Under 31 U.S.C. § 1353

7) Note dated 2/2/01, RE: CFE BUSINESS OPPORTUNITY;

8) EC dated 1/30/01, RE: PARTICIPATION IN OUTSIDE
ORGANIZATIONS;

9) EC dated 1/24/01, RE: PARTICIPATION IN OUTSIDE
ORGANIZATIONS ;

10) Letter from DGC, dated 1/24/01;

11) EC dated 1/18/01, RE: PARTICIPATION OF ADIC IN
VARIOUS OUTSIDE ORGANIZATIONS ;

12) EC dated 1/18/01, 'RE; ETHICS MATTERS;

13) EC dated 12/26/00, RE: CONFLICT OF INTEREST IN

ADMINISTRA TIVE REPRESENTATION OF THE FBI It !

f [CLASS ACTION BY ATTORNEYS ASSIGNED TO THE

eEPESYEENT LAW UNITS;

14) Letter from DGC, dated 12/5/00;

15) Letter from DDAEQ, dated 11/27/00;

16) Note from DDAEO , dated 10/31/00;

1?) Letter from DDAEO, dated 10/17/00.

. Lastly, enclosed are copies of the following memoranda
reflecting instances in which we accepted travel reimbursement
from non-federal sources that totaled more than $250 per event
for the period between April 1, 2000, and September 30, 2000.

L'ravei Dates: 9/27 - 29/00;

Travel Dat

29/00;

Travel Dates: 9/26 - 27/00;

- 23/00;

i

Memorandum to Ms. Mary Braden, Director, DOJ Ethics Office
Re: 18 D.S.C. § 208(b) (1) Waiver and Opinion Under

18 U.S.C. §s 202-209, and Travel Under 31 U.S.C-. § 1353

5)

Travel Dates: 10/5 - 6/00;

6 }

1

7 )

Travel wares: xu/i5 - 19/00;

~ ~ ~i

Travel Dates: 10/16 - 21/00,-

Memorandum

Ms.- Mary Braden, Director
DOJ Ethics Office

v™ 11/2/01

From :

Patrick w. Kelley

Deputy Designated Agency Ethics Official (DDAEO)

18 U.S.C. § 208 (b) (1) WAIVERS AND OPINIONS UNDER
18 U.S.C. §§ 202-209, AND' ACCEPTANCE OF TRAVEL UNDER
31 U.S.C. § 1353

As requested by your memorandum of October 2, 2001,
enclosed are the following redacted copies of waivers granted by
■ the FBI under 18 U.S.C. S 208 (b) from April 1, 2001, through
September 30, 2001.

1) Letter from DDAEO, dated 5/9/01.

Also enclosed are redacted copies of opinions issued
under 18 U.S.C. §§ 202-209 by the FBI from April 1, 2001, through
September 30, 2001.

1) Note from Deputy General Counsel (DGC) , dated
• 8/9/01;

2) Note from DGC, dated 5/23/01

3) Note from DGC, dated 7/23/01;

4) Letter from DDAEO, dated 5/16/01;

5) Note from DDAEO, dated 5/4/01;

6) ' Memo .from DGC, dated 5/23/01;

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Memorandum to Ms. Mary Braden, Director, DOJ Ethics Office
Re: 18 U.S.C. § 208(b) (1) Waiver and Opinion Under

18 U.S.C. §§ 202 - 209 , and Acceptance of Travel Under
31 U.S.C. § 1353

7) Memo from DGC, dated 5/1/01;

8) better from DDAEO, dated 8/8/01;

9) Note from DDAEO, dated 4/16/01;

10} EC dated '8/27/01, RE: CJIS DIVISION COMMUNICATIONS
AND TECHNOLOGY BRANCH; ADMINISTRATIVE MATTERS ;

11) Note from DDAEO, dated 4/2/01;

12) Memo from DDAEO, dated 4/17/01;

13) Letter from DDAEO, dated 7/3/01; and

14) Note dated 8/17/01, RE; SERVICE ON BOARD OF BOY
SCOUTS OF AMERICA.

Lastly; enclosed are copies of the SF 326 and the
following memoranda reflecting instances 'in which we accepted
travel reimbursement from non-federal sources that totaled more
than $250 per event for the period between April 1, 2001, and
September 30, 2001:.

•M

2 )

3)

4)

5)

1

Travel Dates; 11/11

Travel nates; i/s

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6 / 01 ;

Travel Dates : -4/8 - 13/ 01 ;

2

Memorandum to Ms, Mary Braden, Director, DOJ Ethics Office
Re: 18 U.S.C, § 208(b) (1) Waiver and Opinion Under

18 U.S.C. §§ 202-209, and Acceptance of Travel Under
' 31 U.S.C. § 1353

Travel Dates: 4/9 - 11/01;

Travel Dates

ates : 4/26

Travel Dates: 4/29/01 - 5/1/01;

Travel Dates

10/01

Travel Dates :

Travel Dates

Trave

Travel Daces

Memorandum to Ms. Mary Braden, Director, DOJ Ethics Office
Re: 18 U.S.C. § 208(b)(1) Waiver and Opinion Under

18 U.S.C. §§ 202-209, and Acceptance of Travel Under
31 U.S.C. § 1353

Travel Dates: 7/15 - 18/01;

r 8/2 - 3/01

Travel Dates:. 8/4 - 7/01.

Travel Dates: b/ 10 - 12/01?
Travel Dates: 8/20 - 24/01;

'21 - 26/01?

H9/5 - 7/01;

Travel Dates:

- 11/01; and

Crave! Date: b/2 9/ 01

Enclosures. (45)

4

Memorandum,.

To

)

From :

Subject: .

Ms. Mary Braden, Director d«c 5/1/00

DQJ Ethics Office

Mr. Patrick W. Kelley

Deputy Designated Agency Ethics Official (DDAEO).

18 U.S.C. § 208(b)(1) WAIVERS AND OPINIONS UNDER
18 U.S.C. §§ 202-209, AND TRAVEL UNDER 31 U.S.C. § 1353

As requested by your memorandum of April 4, 2000,
enclosed are the following redacted copies of’ opinions issued
under 18 U.S.C. Sections- 202-209 by the FBI from October 1, 1999,
and March 31, 2000.

1) Letter from DDAEO dated 10/4/99;

2) Letter from DDAEO, dated 10/20/99;

3) Note from DDAEO, dated 11/17/99;

4) Note from DDAEO, dated 11/24/99;

5) Note from Deputy General Counsel (DGC) , dated
11/30/99;

6) Letter from DGC, dated 12/15/99;

7) , Note from DDAEO, dated 12/23/99;

8) EC dated 12/23/99, Re: REQUEST FOR RECONSIDERATION

OF WAIVER PURSUANT TO TITLE 18 U.S.C. SECTION 208; ■

1 - I H Rltv. 6032

1 - Mr. L, Parkinson, Rm. 7427
1 - Mr. P. Kelley, Rm.71S9
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1 - I rto- 7338

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Memorandum to Ms. Mazy Braden, Director, DOJ Ethics Office
Re: 18 O.S.C. § 208(b)(1) Waiver and Opinion Under

18 U.S.C. §§ 202-209, and Travel Under 31 U.S.C. § 1353

9) Letter from DGC, dated 1/12/00;

10) Note to DGC, dated 1/28/00;

11) EC dated 2/15/00, RE: REQUEST TO SERVE ON BOARD OF
DIRECTORS;

12) EC dated 2/16/00, RE: CRIMINAL JUSTICE INFORMATION
. SERVICES (CJIS) DIVISION AUTOMATED OPERATIONS

SUPPORT SECTION MATTERS - POST GOVERNMENT EMPLOYMENT
BY A FORMER CJIS DIVISION EMPLOYEE;

13) Letter from BBAEO, dated 2/16/00;

14) EC dated 2/25/00, RE: POSSIBLE CRIMINAL MISCONDUCT
BY FORMER SAC?

15) EC dated 3/23/00, RE: OUTSIDE EMPLOYMENT FOR CJIS
DIVISION EMPLOYEES OPERATING FIREARMS BUSINESSES;

Also enclosed are copies of the following memoranda
reflecting instances in which we accepted travel reimbursement
from non- federal sources that totaled more than $250 per event
for the period between October 1, 1999, and March '31, 2000:

2 )

rates :

Memorandum to Ms-. Mary Braden, Director, DOJ Ethics Office
Re: 18 U.S.C, S 208(b)(1) Waiver and Opinion Under

18 U.S.C. §.& 202-209, and Travel Under 31 U.S.C. § 1353

7) 1 ~ ~ '1

Dates: 10/29/99 - Ll/3/99;

8) I ■ I

Dates: 10/31/99 - 11/2/99;

Dates:

11/1

£7/99

7

10)

1

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Dates:

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/.

121

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Bates-:

11/12 -

18/99;

15)

Dates 1

-

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1

Dates:

11/16 -

20/99;

17|

l

Dates :

1 1/11 -

9;

18)

1

□

Dates :

11/17 -

20/99;

is\

Dates:

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Dates:

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20/ 99 ;

2lj

Dates :

11/15 -

20/99;

22)

1

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Dates:

1/10 -

12/00;

be

3

Memorandum to Ms. Mary. Braden, Director, DOJ Ethics Office
Re: 18 U.S.C. 1.208(b) (1) Waiver and Opinion Under

18 U.S.C. 11 202-209, and Travel Under 31 U.S.C. § 1353

Dates: 2/22

Dates: 2y 23 - 27/00;

Dates:

Enclosures

NOTE: This memorandum responds to a 4/4/00, memorandum to the

Deputy Designated Agency Ethics Officials from Mary Braden,
Director, Departmental Ethics Office, JMD (copy attached),
requesting us to report travel reimbursements from non- federal
sources and Title 18 U.S.C. Sections 202-209 waivers or opinions
issued during the period of October 1, 1999, to March 31, 2000.

Memorandum

■To : Ms. Mary Braden, Director Date 10/23/00

, DOJ Ethics Office

From : , Mr. Patrick: W. Kelley

Deputy Designated Agency Ethics Official (DDAE0)

Subject 18 U.S.C. 5 208(b)(1) WAIVERS, OPINIONS UNDER

. 18 U.S.C. §§ 202-209, AND ACCEPTANCE OF TRAVEL UNDER
31 U.S.C. § 1353

As requested by your memorandum of October 2, 2000,
enclosed are the following redacted copies of opinions issued
under 18 U.S.C. Sections 202-209 by the FBI from April 1, 2000,
and September 30, 2000.

1) Routing Slip from DDAEO dated 4/18/00;

2) Note from DDAEO, dated 6/21/00, with memo from DAD,
IRD dated ‘6/20/00;

3) EC dated 6/23/00, RE: REQUEST FOR AUTHORIZATION FOR
OUTSIDE EMPLOYMENT;

4) Note from DDAEO, dated 6/23/00;

5) Letter from DDAEO, dated 7/5/00;

1

6) EC dated 8/23/00, RE: PERSONNEL MATTER - REQUEST FOR
DETERMINATION FROM OGC;

7) Note from DDAEO, dated 8/28/00;

8) Note from DDAEO, dated 8/31/00;

9.) EC dated 9/14/00, RE: GIFTS RECEIVED FROM OUTSIDE
VENDORS IN RANDOM DRAWINGS;

10) Note from

i- l I

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Memorandum to Ms. Mary Braden, Director, DOJ Ethics Office
Res 18 U.S-C. § 208(b)(1) Waiver and Opinion Under

18 U.S.C. §§: 202-209, and Travel Under 31 U.S.C. § 1353

rr^

Travel Dates: 6/4 - 6/00;

1*7)

71,

Travel Dates: 6/7 - 10/00;

18)

Travel Dates: 6/13 - 14/00;

19) E

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Travel Dates; 6/13 - 14/00;

20 )
21 )
22 )
23 1

■ iravei ummuf 6/21 - 24/oo ;

Travel Dates: 6/24 - 28/00;

Travel Dates; 6/26 - 29/00;

- 6 / 00 ;

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26)

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Travel Dates; 7/3 - 6/00;

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Travel Dates: .7/13 - 15/00;

Travel Dates: v/lo - 11/00;

Travel batea 1 ; 7 A s - 19/00;

28)[

29)

Travel Daces: '7/17 - 21/00;

22 / 00 ;

Travel Dates: v/^o -

30

Travel Dates: 7/20 - 22/00;

.r.

■o

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tv.

3

Memorandum to Ms. Mary Braden, Director, DOJ Ethics Office
Re: 18 U.S.C. § 208(b) (1) Waiver and Opinion Under

18 U.S.C. §§ 202-208, and Travel Under 31 U.S.C. § 1353

; 7/31/00 - 8/3/00;

7 * 7 / 3 1/00 - 8 / 3 / 00 ;

Various Travel Dates: 6/24/00 - 8/3/00;

Travel Dates: 9/5 - 7/00;

Travel Dates: 9/18 - 20/00;
^Travel Dates: 9/21 - 22/00.

Enclosures (46)

4

%

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LIMITED OFFICIAf^VSE^

Mr. Bobby E. Dies

Federal Bureau of Investigation

Washington, DC 20535

May 16,

SOURCE SELECTION SENSITIVE INFORMATION -- LIMITED OFFICIAL USE

Dear Mr. Dies:

This letter responds to your request for a waiver pursuant
to 18 U.S.C. § 208(b) (1) to allow you to participate as' Assistant
Director, Information Resources Division, in managing the
performance of two awarded contracts issued as part of the FBI's
Trilogy Program. These contracts affect your financial
interests, which arise from your financial interests in
International Business Machines, Inc. ("IBM").

b6

You have
approximate^

1 1

For the purposes of this waiver request, the Governmental
duties you have that conflict with your financial interests are
those as the senior FBI official directly responsible for
upgrading the FBI's technology. While you are not the
contracting officer and the FBI is not the contracting agency or
responsible for administering either contract 1 , the FBI, as the
requiring activity, will be closely involved with the contracting
officer on the myriad of issues that will arise during the
performance of these contracts. In addition, while the contracts
address different aspects of the upgrade initiative, the
objectives served by the two contracts are parts of an integrated
whole. Therefore, action taken on one component could have
consequences on the other.

Dm. Mr.

ADO Adm.

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1 -

am. on.:

1 -

AdntSam.

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The prime contractor for the Transportation Network and
Information Presentation Components ("TN/IPC") is DynCorp. The
prime contractor for User Applications Component ("UAC") will be

»

Mr. P. Kelley

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Both of those functions will be performed by the Federal Systems
o*u.toon* Integration and Management Center (FEDSIMCEN), a part of the General
mtAiw. Services Administration.

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Mr. Bobby E. Diet's,

SAIC. Each prime contractor has a number of subcontractors and
suppliers. IBM is one of five subcontractors of SAIC on the UAC
contract.

This effect on IBM gives you a disqualifying financial
interest in the SAIC contract, and, a potential disqualifying
financial interest in the DynCorp contract. Under 18 U.S.C.

§208 (a), Federal employees may not participate personally and
substantially in any particular matter that would have a direct
and predictable effect on their financial interests or those of
certain others, such as their spouses. Thus, you would be
disqualified from acting on issues relating to the performance - of
the SAIC contract, and, in an abundance of caution, the DynCorp
contract .

Nevertheless, under 18 U.S.C. §208 (b) (1), I may waive the
prohibition of 18 U.S.C. §208 (a) where I determine that the
employee's financial interest in the matter "is not so
substantial as to be deemed likely to affect the integrity of the
services which the Government may expect" from the employee. I
have been delegated authority by the Director, FBI, to make this
determination .

An important fact here is that the solicitations that
produced these contracts used performance-based specifications.

As a result, all significant decisions regarding the nature,
scope, and direction of the Trilogy Program have been determined
by the terms of the contracts, including how much work of what
kind and value is to be performed by which entity. While minor
deviations from the terms of the awarded contracts are possible,
significant changes would require negotiation and mutual
agreement of the parties and issuance of change orders by the GSA
contracting officer. Finally, as IBM is participating in the UAC
contract as a subcontractor, as a legal matter, the Government
would not be dealing directly with IBM.. Rather, significant
discussions about the work involving IBM would be with SAIC and
involve the GSA contracting officer.

Even though you participated in the selection of the
contractor for the TN/ICP under the terms of an individual waiver
under 18 U.S.C. § 208(b), I note that because of the nature of
IBM's involvement in the UCA procurement, you recused yourself
from participating in it because of the importance of not
prejudicing any bidder's solution, even though four of the five
offerors included IBM among the subcontractors and vendors that
they were offering.

2

t

Mr. Bobby E. Dif~>

I note that the DynCorp contract is valued at $161.9 million
and the SAIC contract at $88.6 million. The portion of the work
that the SAIC contract assigns to IBM, programming services, is
priced at $7.6 million. The Consolidated Statement of Earnings
for IBM Corporation and its subsidiary companies reports that
IBM's revenue during 2000 totaled $88 billion, $33 billion of
which was attributed to "global services," the category that
would include the instant programming services.

Finally, I note that, although recently hired, you have been
a critical player in creating a credible upgrade program that
overcame significant Congressional reservations about the ability
of the FBI to competently manage this badly need initiative.

Those Congressional reservations had precluded the release of
funds appropriated for the upgrade initiative. Your complete
removal from this initiative would throw considerable doubt on
the FBI's ability to achieve the program's goals and might
occasion significant delays in achieving them.

These facts lead me to conclude that your participation in
any aspect of the performance of the SAIC contract that does not
require the issuance of a change order or otherwise alter the
terms, conditions, or price of the contract is unlikely to affect
the integrity of your services in these matters. Accordingly, I
hereby grant a waiver under 18 U.S.C. §208 (a) with regard to your
participation in matters involving the performance of the SAIC
and DynCorp contracts but only to the extent that the issue does
not reasonably anticipate the issuance of a change order or other
modification of the price of either of the awarded contracts in
order to resolve it. In addition, you must avoid any direct
communications with IBM.

This waiver applies only to your participation in the
performance of the contracts with DynCorp and SAIC. The statute,
18 U.S.C. § 208(a), continues to disqualify you from
participating personally and substantially in any other
particular matter that involves IBM's interests.

I have consulted with the Office of Government Ethics on
this waiver and will provide that office a copy of it.

Sincerely yours.

P.W. Kelley

3

Mr. Bobby E. Di

V

r

1

Deputy Designated Agency
Ethics Official

^eriagal Sust a ins Tn t a n^ at i on and Management Center

5203 Leesburg Pike
Suite 1100

Falls Church, VA 22041

Office of Government Ethics
1201 New York Ave., NW
Washington, D.C . 2005-3917

January 10, 2003

Mr. Darwin A. John

Chief Information Officer

Federal Bureau of Investigation

Dear Mr. John:

As detailed below, this letter constitutes a grant of a
waiver from the prohibitions of Title 18 United States Code
Section 208 (a) . Pursuant to this waiver you may undertake all
Trilogy program matters while in the performance of your duties
as the Chief Information Officer, Federal Bureau of
Investigation, to include all matters involving Microsoft
Corporation, subject to the specific limitations set out herein.

In accordance with the Department of Justice Order on
procedures for complying with ethics requirements (DOJ Order
1200.1, dated August 25, 1998) I, as the FBI 1 s Deputy Designated
Agency Ethics Official, have been delegated the authority for
making "formal determinations" for employees of the FBI,
including waivers of Title 18 United States Code Section 208(a)
prohibitions. Under Section 208(a), an employee of the United
States is prohibited from participating personally and
substantially in a matter in which he has a financial interest,
unless he obtains a waiver under Section 208(b). Section
208 (b) (1) provides that a waiver may be granted upon a written
determination that the financial interest involved is not so
substantial as to be deemed likely to affect the integrity of the
service that the government may expect from the employee.

It is my understanding that in order to aggressively
■pursue necessary FBI technology upgrades in a timely manner, it
is essential that the Bureau utilize your experience and
abilities. Technology upgrades, as embodied in the Trilogy
program, are a key element of the Bureau’s plans to support its
primary missions, including counterterrorism and
counterintelligence. As the Chief Information Officer for the
FBI, your oversight and involvement in Trilogy are essential to
the program's success.

1 - Mr. Darwin A. John

TpML-Paiack W. Kelley

l

1

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1 - ALU Tickler
1- OGE Report

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Mr. Darwin A. John

This waiver specifically addresses the conflicts

The Trilogy program is designed to effect immediate
modernization of the FBI's computer hardware and network
infrastructure, Bureau wide. The Transportation Network and
Information Presentation Components (TN/IPC) of the Trilogy
program are the subject of a contract that was awarded to DynCorp
as the prime contractor on 5/4/2001. A third component, the User
Applications Component (UAC) , generated a second contract. As of
6/5/2001, the prime contractor for the UAC contract is SAIC.

Each prime contractor has a number of subcontractors and
suppliers. Microsoft is a subcontractor under both contracts.

In addition, while the contracts address different aspects of the
upgrade initiative, the objectives served by the two contracts
are parts of an integrated whole. Therefore, action taken on one
component could have consequences on the other. The TN/IPC
contract was valued at inception at $161.9 million and the UAC
contract was valued at $88.6 million. Purchases from Microsoft
are estimated to total approximately $6.3 million for software
and services for the Trilogy program. The current financial
statement for Microsoft indicates that Microsoft’s revenue during
their fiscal 2002 year ending June 30th totaled $28.4 billion.

As the Trilogy program continues to mature, decisions
must be made about software applications. As a decision has
already been reached that Trilogy will be a Windows based system,
every software issue potentially involves the Microsoft company.

For the purpose of this waiver, the official duties
that you have that would impact your financial interest in
Microsoft are those involved in overseeing implementation of the
Trilogy program on behalf of the Director, FBI. You are not only
the supervisory Chief Information Officer who oversees the FBI's
Information Resources Division, but you are also a key advisor to
the Director on all Trilogy matters. Your advice on the issue of
system administration will be important and significant.

The solicitations that produced the Trilogy prime
contracts used performance -based specifications. As a result,
all significant decisions regarding the nature, scope, and

Mr. Darwin A. John

direction of the Trilogy program have been determined by the
terms of the contracts, including how much work of what kind and
value is to be performed by which entity. While minor deviations
from the terms of the awarded contracts are possible, significant
changes would ultimately require negotiation and mutual agreement
9 of the parties and issuance of change orders by the contracting
officer or contracting officer's representative. Both Trilogy
prime contracts were awarded by and are administered by General
Services Administration (GSA) .

It is possible that a third prime, contract for system
administration may also be awarded and administered by GSA.

Thus, although your participation in Trilogy program matters will
be most significant, final decisions will be reviewed and
implemented by third parties.

b6

In light of the relatively small portion of youj
investment portfolio that your Microsoft holdings make up ;

the fact that you are a key advisor to the Director; your *uuj.quer
"knowledge capital" derived from years of experience in the
private sector; the very significant role GSA plays in
contracting for the Trilogy program; and the very small impact
that this potential contract could make on Microsoft's revenue
stream, I find and determine that there is little likelihood that
these interests will affect the integrity of your official
actions. I, consequently, believe that a waiver of Section
208(a) prohibitions is appropriate for all Trilogy related
matters that could impact Microsoft with the exception of matters
that might require your involvement in direct negotiations with
Microsoft. You may not negotiate directly with Microsoft or any
of its employees on any cost or price of Microsoft products or
services that may be used by the Trilogy program. This
restriction only applies to the conduct of focused procurement
negotiations, and would not, for example, preclude you from
participating in general discussions with Microsoft concerning
software applications, such as what are the Bureau's needs and
what software packages would meet those needs.

This waiver is granted based on the understanding that
while you remain employed by the FBI that you, or anyone whose
financial interests may be imputed to you, will not acquire any
additional stock in Microsoft, or in any other entity which would
constitute a conflicting financial interest in this matter. It
is understood that the shares of Microsoft stock that you
currently hold may increase in value; this waiver is intended to
cover increased share value but not the acquisition of additional
Microsoft shares, or in any other conflicting assets.

3

Mr. Darwin A. John

This waiver is being granted following consultations
with the Office of Government Ethics.

Sincerely,

Patrick W. Kelley
Deputy General Counsel and
Deputy Designated Agency
Ethics Official

Note: On January 2, 2003, pursuant to DOJ Order 1200.1, dated August 25, 1998, this Section
208 "waiver" letter was coordi nated with the DOJ D epartment Ethics Office and subseque ntly
with OGE. On January 2, 20021 | DOJ Ethics Offic | |

concurred telephonically with OGC memorandum, Subj: Waiver Under 18 U.S.C. § 208(B)(1)
for Chief Information Officer Darwin A. John, Federal Bureau of Investigation, dated January 2,
2003, attached.

[ requested that two sentences be added to the letter before being transmitted to OGE.
She requested that the letter infor m Darwin John that he or any one whose financial interests may
be imputed to him will not acquire | [ >r any other interests that would

constitute a conflict of interest with his official duties. She also asked that we include a
statement that the DGC consulted with OGE prior to granting the waiver. Both requests are
satisfied in the letter.

On January 6, 2003, at the direction c[
was contacted concerning this matter
(202.208. 8037l T~ fe sponded

W6 SdtUd’flW:

3

Office of Government Ethics,
waiver letter was faxed to her

and the dra
so telephonically, concurring with the

letter. (Note: OGE does not formally concur or not, they consult). She found the letter
satisfactory and requested a copy of the signed waiver.

4

be

January 10, 2003

Mr. Darwin A. John

Chief Information Officer

Federal Bureau of Investigation

Dear Mr. John:

As detailed below, this letter constitutes a grant of .
waiver, from the prohibitions of Title 18 United States Code
Section 208 (a) . Pursuant to this waiver you may undertake all
Trilogy program matters while in the performance of your duties
as the Chief Information Officer, Federal Bureau of
Investigation, to include all matters involving Microsoft
Corporation, subject to the specific limitations set out herein.

In accordance with the Department of Justice Order on
procedures for complying with ethics requirements (DCJ Order
1200.1, dated August 25, 1998) I, as the FBI's Deputy Designated
Agency Ethics Official, have been delegated the authority for
making "formal determinations" for employees of the FBI,
including waivers of Title 18 United States Code Section 208(a)
prohibitions. Under Section 208(a), an employee of the United
■States is prohibited from participating personally and
substantially in a matter in which he has a financial interest,
unless he obtains a waiver under Section 208 (b) . Section
208(b) (1) provides that a waiver may be granted upon a written
determination that the financial interest involved is not so
substantial as to be deemed likely to affect the integrity of tb
service that the government may expect from the employee.

It is my understanding that in .order to aggressively
pursue necessary FBI technology upgrades in a timely manner, it
is essential that the Bureau utilize your experience and
abilities. Technology upgrades, as embodied in the Trilogy
program, are a key element of the Bureau’s plans to support its
primary missions, including counterterrorism and
counterintelligence . As the Chief Information Officer for the
FBI, your oversight and involvement in Trilogy are essential to
the program's success.

1 - Mr. Darwin A. John

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LIMITED OFFICIAL USE

March 9, 2001

o

Federal Bureau of Investigation
Washington, DC 20535

SOURCE SELECTION SENSITIVE INFORMATION — LIMITED OFFICIAL USE.

Dear

0

This letter responds to your request for a waiver pursuant .
to’ 18 U.S.C. § 208 (b) (1) to allow you to participate as a member
of the source selection advisory council ..("SSAC") considering
proposals submitted in connection with the FBI's technology
upgrade, the Trilogy procurement, Solicitation ff , GSC-TFMG-01-
M02 6. This procurement affects your financial interests, which
arise from your holding of stock and stock options in
International Business Machines, Inc. ("IBM") . ; * '

You have advised this Office that you currently hold

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assets make up £

For the purposes of this waiver request, the Governmental .'
duties you have that conflict with your financial interests are .
those as a member of the SSAC considering the Trilogy proposals.

In that role, you are required to analyze and recommend
appropriate action on the proposals, including recommending to
the source selection authority which proposal; should be accepted.
You are not the selection authority, however. : In.this case'the
selection-official is. an employee of Federal Systems Integration > f .
and Management Center. . :• \ - •• 4 * -•

Among the four companies competing for the. prime . contract, '
each has proposed subcontractors and various vendors as sources ;
of equipment and supplies. One of the 98. firms that are proposed
as subcontractors or vendors is Tivoli Systems, Inc. ("Tivoli").

’In carrying out your duties as a member of the SSAC, your
interests in IBM could be affected by the selection or non- .
selection of a proposal that included Tivoli. This is true
because Tivoli is a Wholly owned subsidiary of IBM. Since IBM
owns 100% of Tivoli's voting stock, the economic impact of

Mr. Partin

ALU Library iFthics/Conflicts of

Ir.teresis/Waiver )

1 - ALU Ticbier
^66 F-riC-iLOl 4 1 5-C

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disqualify you from participating personally and substantially in
any other particular matter that involves IBM's interests.

I have consulted with the Office of Government Ethics on
this waiver and will provide that office a copy of' it.

Sincerely yours,

P.W. Kelley

Deputy Designated Agency
Ethics Official

. . m,

March 23, 2001

LIMITED OFFICIAL USE

0

Federal Bureau of Investigation
Washington, DC 20535

SOURCE SELECTION SENSITIVE INFORMATION -- LIMITED OFFICIAL USE

Dear ■mm Q

This letter responds to your request for a waiver pursuant
to I8 ^UTs'C. § 208(b) (1) r to allow you to participate as a member
of the Source Selection Advisory Council ("SSAC") considering
proposals submitted in connection with the FBI's technology
upgrade, the Trilogy procurement. Solicitation # GSC-TFMG-01-
M026, This procurement affects your financial interests, which
arise from your holding of stock in Microsoft Corporation
("Microsoft") .

You have advised this Office that you curr ently hold
approximately Ynnr Mirrosoft

stock makes upH four

investments. ‘ ~ ■ — ■

For the purposes of this waiver request, the Governmental
duties you have that conflict with your financial interests are
those as a member of the SSAC considering the Trilogy proposals.
In that role, you are required to analyze and recommend
appropriate action on the proposals, including recommending to
the source selection authority which proposal should be accepted.
You are not the selection authority, however. In this case the
selection official is an employee of Federal Systems Integration
and Management Center.

Among the four companies competing for the prime contract,
each has proposed subcontractors and various vendors as sources
of equipment and supplies. Two of those competing for the prime
contract propose using off-the-shelf products produced by
Microsoft. The total value for both offers is estimated to be
$25 thousand. In carrying out your duties as a member of the
SSAC, your interests in Microsoft could be affected by the

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1 - ALU Library (Ethics/Conflicts of
Interests/Waiver)

1 - ALU Tickler
66F-KQ-1201415-C

selection or non-selection of a proposal that included using
Microsoft products.

This effect on Microsoft gives you a disqualifying financial
interest in the matter. Under 18 U.S.C. §208 (a), Federal
employees may not participate personally and substantially in any
particular matter that would have a direct and predictable effect
on their financial interests or those of certain others, such, as
their spouses. Thus, you would be disqualified from acting on
the proposals.

Nevertheless, under 18 U.S.C. § 208(b) (1), I may waive the
prohibition of 18 U.S.C. § 208(a) where I determine that the
employee's financial interest in the matter "is not so
substantial as to be deemed likely to affect the integrity of, the
services which the Government may expect" from the employee. I
have been delegated authority by the Director, FBI, to make this
determination.

Accordingly, in light of the minor role the services that
are proposed to be purchased from Microsoft plays in this
procurement, the small impact the purchase or non-purchase of
services from Microsoft would likely have on Microsoft's economic
health, and the small percentage your Microsoft holdings
represent of your investments, I hereby grant a waiver of 18
U.S.C. § 208(a) with regard to your participation as a member of
SSAC that would affect your financial interests in Microsoft.

That financial interest is not so substantial as to be deemed
likely to affect the integrity of your services in these matters.

This waiver applies only to your participation in the SSAC
considering proposals submitted in response to Solicitation GSC-
TFMG-01-M026 and only as to your current holdings of Microsoft
stock. The statute, 18 U.S.C. § 208(a), continues to disqualify
you from participating personally and substantially in any other
particular matter that involves Microsoft's interests. In
addition, any significant change in your interest in Microsoft,
beyond normal market fluctuations or dividend reinvestments would
need to be separately evaluated.

I have consulted with the Office of Government Ethics on
this waiver and will provide that office a copy of it.

2

*

0

Sincerely yours.

P.W. Kelley

Deputy Designated Agency
Ethics Official

3